238 A.3d 160
Del.2020Background
- Victim ("Sarah") was 13 when she reported a May 28, 2014 sexual assault by Todd Green; she also reported prior assaults beginning when she was about 11–12.
- Forensic testing found sperm on Sarah’s skort and a matching DNA major contributor on a breast swab consistent with Green; medical exam noted vaginal abrasions.
- A grand jury returned a 22-count indictment; after a five-day trial the jury convicted Green on three counts tied to the May 28, 2014 incident (attempted rape 2d, attempted sexual abuse of a child, unlawful sexual contact 2d) and acquitted on many other counts. Green received an aggregate sentence of Level V incarceration totaling 50 years, 9 months.
- On direct appeal the Delaware Supreme Court affirmed, concluding any admission errors were isolated and outweighed by overwhelming evidence (including DNA).
- Green filed a timely Rule 61 postconviction motion alleging numerous instances of ineffective assistance by trial counsel (and initially appellate counsel); the Superior Court commissioner recommended denial as procedurally barred and on the merits; the trial court adopted that recommendation. On appeal Green withdrew his appellate-ineffective claim; the Supreme Court held the claims were not procedurally barred but denied relief on the merits, affirming the Superior Court.
Issues
| Issue | Plaintiff's Argument (Green) | Defendant's Argument (State / Superior Ct.) | Held |
|---|---|---|---|
| Procedural bars under Super. Ct. Crim. R. 61(i)(3) & (i)(4) | Green: ineffective-assistance claims are proper in postconviction and not procedurally barred. | State/commissioner: some claimed failures mirror issues argued on direct appeal and should be barred for lack of cause or as formerly adjudicated. | Court: IAC claims are not barred by (i)(3); (i)(4) does not apply because direct appeal addressed plain-error, not merits; claims considered on merits. |
| Failure to request mistrial after SANE nurse vouched that she "believed" the victim | Green: counsel should have moved for mistrial; curative instruction inadequate; counsel’s omission was objectively unreasonable and prejudicial. | State: mistrial is last resort; judge gave prompt curative instruction; counsel reasonably declined to seek a likely-denied mistrial. | Held: Counsel’s choice was within Strickland reasonableness; mistrial unlikely; no Strickland prejudice. |
| Failure to cross-examine complainant on prior inconsistent CAC statement | Green: counsel failed to confront Sarah about inconsistencies (no penetration vs. trial testimony of penetration), undermining defense. | State: counsel vigorously attacked credibility overall; strategy to show bias succeeded (jury acquitted many counts without physical evidence). | Held: Strategic decision reasonable; no prejudice (jury acquitted on counts hinging solely on credibility). |
| Failure to request specific-unanimity instruction and failure to object to multiple evidentiary items (vouching, hearsay, prior bad acts, "victim" references, pretrial detention reference) | Green: risk of juror confusion and cumulative prejudice; counsel's omissions cumulatively ineffective. | State: general unanimity instruction and prosecutor’s count-by-count closing minimized confusion; many non‑objections were strategic or objections would likely fail; evidence mostly harmless in context. | Held: No objective unreasonableness in counsel’s choices; no reasonable probability of a different outcome; cumulative-prejudice claim fails. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance—performance and prejudice)
- Premo v. Moore, 562 U.S. 115 (2011) (deference to reasonable strategic choices by counsel)
- Revel v. State, 956 A.2d 23 (Del. 2008) (mistrial is a remedy of last resort; curative instructions presumed effective)
- Probst v. State, 547 A.2d 114 (Del. 1988) (specific‑unanimity instruction required in limited circumstances where alternative acts are conceptually different and each was presented)
- Jackson v. State, 600 A.2d 21 (Del. 1991) (use of term "victim" can be objectionable where commission of crime is disputed)
- Younger v. State, 580 A.2d 552 (Del. 1990) (procedural‑default/cause rules in Rule 61 context)